Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8736
SECOND DIVISION Docket No. 8316
2-MP-EW-'81
The Second Division consisted of the regular members and in
addition Referee M. D. Lyden when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated the procedural
provisions of Rule
31
(a) of the June 1, 1960 controlling agreement
by failing to decline the Local Chairman's claim timely filed February
23,
1978.
2.
That the Missouri Pacific Railroad Company violated Section 2 of the
Memorandum Agreement signed May 26, 1973, to be effective April 1, 19('3,
at Kansas City, Missouri when they did not revert temporarily upgraded!
Electrician Apprentice S. D. Vanderlinden to his apprentice status in
reverse order when force reduction at Kansas City, Missouri was made to
be effective end of shift January 2, 1978, further violating Article III -
Advance Notice Requirements - of the National Agreement June
5,
1962
when the demoted electrician apprentice was not given five
(5)
working
days advance notice of being furloughed as electrician apprentice.
3.
That, accordingly, the Missouri Pacific Railroad Company be ordered to
compensate Electrician Apprentice S. D. Vanderlinden eight hours
(8')
a day, five days a week at the effective rate from January 3, 1978 and
continuous.
Findings
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employe within the meaning of the Railway Labor Act:
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Evidence does not exist to justify that the Missouri Pacific Railroad Company
violated the procedural provisions of Rule 31 (a) June 1, 1960 controlling
agreement by failing to decline the Local Chairman's claim. The Master Mechanic
denied the claim on March 20, 1978. Mail properly addressed and placed in the
usual location for pickup and delivery is constructive delivery of the letter.
Form 1 Award No. 8736
Page 2 Docket No. 8316
2-MP-EW-181
The Organization concedes that the notice of furlough as an electrician is
in accordance with the agreement. It maintains, however, that they were not
properly furloughed as apprentices.
The Carrier takes the position that notice was unnecessary in view of the
fact that there were only four apprentice positions available and all four were
abolished in the notice. It is obvious that the claimant could not bump into a
position which did not exist and no furlough notice was necessary. On the other
hand, if seven apprentice positions existed as claimed by the organization, then
a demotion in accordance with the agreement was necessary and appropriate handling
from that position was required.
Based upon the record determinant in Award 8277, it was stated, "The record
does not contain sufficient information for the Board to make a determination
regarding the number of positions available. It should be simple for the parties
themselves to make this factual determination and we return that finding of fact
to them."
Award 8277 was dated, March 19, 1980. At this time the number has been
established in fact, therefore the Board awards as follows.
A W A R D
Based on the entire record, if the factual determination of the number of
jobs available reveals sufficient positions to accommodate the demotion of the
Claimant to an apprentice position, he will be awarded five
(5)
days in accordance
with the notice provisions of the National Agreement. If the number of apprentice
positions available were nonexistent, the claim is denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By
/Rpsemar ie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 24th day of June, 1981.